A two-judge Bench of the Bombay High Court on Wednesday delivered a split verdict in comedian Kunal Kamra’s petition that challenges the Central government’s Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023. The rules empower the Centre to establish a fact-checking unit (FCU) to identify fake, false and misleading information about the government’s business on social media platforms.
Justices Gautam Patel and Neela Gokhale pronounced the verdict on the four petitions filed by satirist Mr. Kamra, the Editors Guild of India, the Association of Indian Magazines and News Broadcast and Digital Association.
While Justice Patel ruled in favour of petitioners, Justice Neela Gokhale has disagreed and upheld the amendment. The case will now be placed before a third judge by the Chief Justice of the Bombay High Court. “There is a disagreement between us. We have passed separate judgments with divergent views. We were not able to concur,” Justice Patel said.
Solicitor General Tushar Mehta said the FCU would not be notified for another 10 days. The court has given autonomy to the petitioners to submit an application (if they need to) with the respective forum for further extension of the protection.
The petitioners, in their rejoinder, claimed that intermediaries only have an ‘illusion’ of choice once something is flagged by the government.
Safe harbour status
According to the new IT rules (2023), the government can ask social media platforms such as Facebook, X, Instagram, Youtube to remove any content/ news related to the ‘business of the Central government’ that was identified as ‘fake, false, or misleading’ with the help of FCU. An organisation appointed by the government will be the arbiter of such content, and if intermediaries do not comply with the organisation’s decision, they may lose their safe harbour status under Section 79 of the IT Act, 2000.
Justice Patel questioned how can the court be expected to limit the scope of the word ‘information’ defined under the IT Act.
During the proceedings, Mr. Mehta said social media platforms did not have liberty to do anything once content on their platform was flagged as fake, false, misleading by the FCU. If a social media or news website continued to host flagged information, it would have to defend its stand in the court if any action was taken against an individual involved in such social media posts.
The Internet Freedom Foundation, which assisted Mr. Kamra in filing the writ petition, said the plea had challenged the validity of the IT rules, arguing that the amendments are ultra vires of Section 79 of the IT Act, 2000. The petition also argued that the amendments violate the right to freedom of speech and expression under Article 19 (1)(a); they do not satisfy provisions of reasonable restrictions on freedom of speech and expression under Article 19(2) and that the amendments violate right to practice and trade or profession under Article 19(1)(g).
